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Fresh focus on civil legal aid

The cost of criminal legal aid is falling and attention is now turning to the bill for civil cases.

Having enjoyed some recent success in reducing the cost to the public purse of criminal legal aid, Justice Minister David Ford has now turned his attention to the high cost of civil legal aid.

While criminal legal aid costs fell significantly following Ford’s earlier intervention, from £45 million to £31 million between 2011-2012 and 2012-2013, civil legal aid costs have risen dramatically in recent years. In fact, civil legal aid costs have almost doubled, from £27.5 million in 2007-2008 to an estimated £53.5 million in 2013-2014. The Department of Justice has now published an options paper for public consultation on the scope of civil legal aid.

Although the Minister and his department can argue, reasonably, that reform of the scope of civil legal aid is about much more than cost reduction, there is no doubt that with the overall pressure on Northern Ireland’s Budget, there is now an unprecedented scrutiny of the cost of delivering justice.

However, the recent consultation paper is clearly not just a sharp reaction to soaring costs. It was flagged up as a project in the Department of Justice’s 2012 action plan to implement the recommendations of the 2011 access to justice review and is part of a suite of projects aimed at improving justice and where possible getting ‘more for less’ out of the system.

In essence, legal aid covers the provision of legal advice and legal representation at various levels. The department’s consultation paper has identified three areas of reform which would reduce the current wide scope of this provision. Firstly, it is argued, much of the advice given to people could be delivered by other providers particularly in the voluntary and community sectors. It points out that legal advice relating to issues such as housing, debt or welfare entitlements can be obtained elsewhere, mostly free-of-charge. As a result, the department proposes to remove completely a wide range of topics and issues from coverage by the legal aid system.

Secondly, the department proposes to take a similar approach with representation. The consultation paper recommends removing legal representation from a number of specific areas where representation is currently available, for example in probate and inheritance.

Thirdly, it is proposed that legal aid should be removed or restricted in private family Children Order cases e.g. cases to determine the primary residence of a child or to formalise contact with a child. The consultation paper points to the fact that in England and Wales all private family law cases have been removed from legal aid except those involving domestic violence or child abuse. The result has been increased mediation and substantially lower costs.

This, of course, is the Minister’s underlying argument. Matters that can be managed without adversarial legal representatives and formal court proceedings should be dealt with in that fashion. As much as possible, cases should be handled via mediation and negotiation with the courts as a last resort.

Although Ford acknowledges that the proposed reforms should generate savings, he argues that the result will be that the legal aid budget will be better focused on those clients who need help most, particularly in cases involving considerations of threat to life, liberty or violence. Opponents will, however, argue that lower spending will impact service quality.

In a related development, the arms-length body which currently manages legal aid on behalf of the Department of Justice – the Northern Ireland Legal Services Commission – is being wound up and will have its responsibilities transferred, from April, to a new Legal Services Agency which will be under the direct control of the department.